Like the vast majority of Americans we have an instinctive disgust for the crime of child pornography.
And so we reacted with suspicion when we read this month that the Oregon Supreme Court had overturned two child porn convictions.
"Wonderful," we initially thought, "a couple of creeps got off through some technicality."
We were wrong.
The state Supreme Court got it right.
More importantly, the majority rulings by the state's highest court
prompted the Legislature to fix a significant flaw in Oregon's criminal
statutes that's been in place since 1995.
As it stands, merely viewing child pornography via the Internet, though
a crime in many states, is not explicitly illegal in Oregon.
Justice Mick Gillette of the state Supreme Court wrote, in the decision
overturning one of the two convictions: "The Oregon Legislature made a
different choice: It chose not to criminalize the act of viewing child
pornography, unless that act is accompanied by paying, exchanging or
giving 'anything' of value. That same requirement is true of the act of
'obtaining' child pornography."
In response to the Court's ruling, Attorney General John Kroger said he
will draft a bill that explicitly makes it a crime to view child
The Legislature should pass that bill, and Gov. John Kitzhaber should sign it into law, as soon as possible.
Although criminalizing the viewing of child pornography on a computer
might seem to raise the specter of people being convicted because they
typed the wrong address into their browser, or because someone
maliciously sent them an e-mail containing photos, neither of the
convictions the state Supreme Court overturned involved anything like
In one, Barry Lowell Barger of Eugene was convicted of eight counts of
second-degree encouraging child sexual abuse after police found eight
pornographic images on his computer.
In the other case, Gregg Bryant Ritchie of Clackamas County was
convicted of 20 counts of the same crime based on images police found
on two of his computers.
In neither case was there evidence that the presence of the photos on the mens' computers resulted from a mistake, or a prank.
Although Gillette makes a compelling case as to why the state failed
the meet the standards of the 1995 law in convicting Barger and
Ritchie, we're a bit troubled by his description of the "intangible
nature of a web image."
The image itself might qualify as intangible, being constructed of a series of 1's and 0's.
But the children being victimized are all too real, and so is the immeasurable damage done to them.
Society has a sacred duty to protect children. And laws that uphold the
fallacy that a person who only looks at child pornography is not also
contributing to, and encouraging, the criminal abuse of children are
not merely naive laws, but truly malevolent ones.
Fortunately, even the jurists who overturned the two Oregon convictions seem to agree.
In his concurring opinion in overturning Barger's conviction, Chief
Justice Paul De Muniz wrote: "My objective is simply to demonstrate
that, with regard to the crime of encouraging child sexual abuse,
Oregon can bring its laws into step with contemporaneous technological
realities just as other states have done. Oregon's citizens - and its
justice system - will all benefit as a result."
We concur too.